STATE OF A.P.versusP. KHAJA HUSSAIN

                        (2009) 6 S.C.R. 660
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A                          STATE OF AP.
                                 v.
                        P. KHAJA HUSSAIN
                (Criminal Appeal No. 1389 of 2004)
                          APRIL 15, 2009
B
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]                                       •
                                                                     -t

        PENAL CODE, 1860:
c
        s.302 - Death of wife of accused by burn injuries -
  conviction by trial court on the basis of two dying declarations
  - High Court noticing variation in the dying declarations and
  acquitting the accused - Held: There is no explanation as to
D why the second dying declaration was recorded by police soon        ...
  after the one recorded by the Magistrate - Variations in the
  dying declarations are not trivial in nature - Conclusions of
  High court do not suffer from any infirmity warranting
  interference - Constitution of India, 1950 - Article 136.
E       The appellant was prosecuted for commission of the
  offence punishable uls 302 IPC, on the allegation that he
  poured kerosene over his wife and set her on fire. The
  trial court believed the dying declarations and convicted          -i   ...
  the appellant of the offence charged. On appeal, the High
F Court noticed variations in the two dying declarations
  and ordered appellant's acquittal.

       In the instant appeal filed by the State Government,
  it was contended for the appellant that variations in the
  two dying declarations were not very significant and the
G
  High Court should not have interfered with the findings
  of the trial court.

        Dismissing the appeals, the Court

H                               660
                       STATE OF A.P. v. P. KHAJA HUSSAIN                 661

   ·~
          ~         HELD: There is no explanation as to why the second A
              dying deciaration was recorded by the Head Constable
              of Police shortly after the one recorded by the Magistrate.
              It is not a case where variations between the two dying
              declarations were trivial in nature. The scenario was
              described in substantially different manner. The High B
              Court noted that the improvements were made ·to


'-
              rationalise with the injuries sustained by the deceased.
              The conclusion of the High Court do not have any
      f
              infirmity which warrant interference. [Para 5] [662-D-F]

                  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                                                                                c
              No. 1389 of 2004.

                   From the Judgment & Order dated 27.8.2003 of the High
              Court of Andhra Pradesh at Hyderabad in Crl. Appeal No. 1511
              of 2001.                                                     D
   ..,,
                   D. Bharathi Reddy for the Appellant.

                  The Judgment of the Court was delivered by

                    DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is        E
              to the judgment of Division Bench of Andhra Pradesh High
              Court directing acquittal of the respondent who faced trial for
              alleged commission of offences punishable under Section 302
              of the Indian Penal Code, 1860 (in short IPC). The learned II
 ·"" :r       Additional Sessions Judge, Kurnool had found the accused          F
              guilty and sentenced him to undergo imprisonment for life.

                   2. According to the prosecution version on 2/8/1999 the
              accused poured kerosene over his wife Pinjari Hussain Bee
              (hereinafer referred to as the deceased) and set her on fire.
                                                                               G
              The prosecution version primarily restrained on two dying
    ~
              declarations purported to have been recorded by the
              Magistrate and by a police official. First dying declaration was
              recorded by the Magistrate on 2/8/1999 on 11.30 a.m. which
              is Ex. P. 15. Later on another dying declaration Ex. P. 20 was
                                                                               H
    662         SUPREME COURT REPORTS              [2009] 6 S.C.R.


A recorded by the Head Constable PW .12 after about one hour
                                                                       -·
                                                                       ~

  of the first dying declaration. The High Court noticed that there
  was variation between the two dying declarations about the
  manner in which the deceased was set on fire. In fact that the
  two dying declarations can be reconciled with each other and
B since no other evidence was available to connect accused with
  crime the conviction as recorded was held to be not
                                                                                   •
  sustainable. Accordingly acquittal was directed.
                                                                             ...   1-

         3. Learned counsel for the appellant - State submitted that   +
    the variation between the two dying declarations was not very
c   significant and the High Court should not have discarded the
    subsequent dying declaration on the ground that it was at
    variance with the first dying declaratiqn.                                  ;"-

       4. There is no appearance on behalf of the respondent in
D spite of service of notice.

       5. There is no explanation as to why the second dying
  declaration was recorded by the Head Constable of Police
                                                                        ""
  shortly after such a statement was recorded when the dying
  declaration have already been recorded by the Magistrate. It
E
  is not a case where the variation between the two dying
  declarations is of trivial in nature. The scenario was described
  in substantially different manner. The High Court noted that the
  improvements were made to rationalise with the injuries
                                                                       -t ...
  sustained by the deceased. Conclusions of the High Court do
F not have any infirmity which warrant any interference.

           6. The appeals stands dismissed.
    R.P.                                      Appeals dismissed.